The first Establishment Clause cases decided after the Lemon Test was created by the Court involved financial aid to schools. At this point in the topic thread, I will begin a review of the significant financial aid cases since Lemon v. Kurtzman, 1971, which will require a series of posts. This block approach to these cases will require some of them being covered slightly out of chronological sequence, in relation to decisions by the Court on other issues.

Establishment Clause cases after Lemon are all based on the Lemon Test, set out by the Court as follows.

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commission, 397 U.S. 664, 668 (1970).

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); [403 U.S. 602, 613] finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674.

At issue in Tilton v. Richardson, 1971, was whether The Higher Education Facilities Act of 1963 was Constitutional, which provided federal construction grants for college and university facilities, excluding any to be used for sectarian instruction or religious worship. The United States retained an interest in the facilities for 20 years, and any violation of the religious use restriction during that period entitled the government to a full recovery of funds.

A suit for injunctive relief was initiated by citizens and taxpayers of the United States, who were residents of Connecticut. Four church related colleges and universities were named as defendants, where federal funds were used for “(1) a library building at Sacred Heart University; (2) a music, drama, and arts building at Annhurst College; (3) a science building at Fairfield University; (4) a library building at Fairfield; and (5) a language laboratory at Albertus Magnus College.” These institutions testified that they were in full compliance with the statute, that the facilities were used solely for functions of secular education.

The Court noted that Congress intended the Act to extend to colleges and universities associated with a religious body; and as part of a review of the internal tension found in precedent cases on the Religion Clauses, that it already had rejected the “simplistic argument that every form of financial aid to church-sponsored activity violates” the First Amendment. The Court upheld “the crucial question” not as “whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.”

Numerous cases considered by the Court have noted the internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause. Walz v. Tax Comm'n, 397 U. S. 664 (1970), is the most recent decision seeking to define the boundaries of the neutral area between these two provisions within which the legislature may legitimately act. There, as in other decisions, the Court treated the three main concerns against which the Establishment Clause sought to protect: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Id. at 668.

Every analysis must begin with the candid acknowledgment that there is no single constitutional caliper that can be used to measure the precise degree to which these three factors are present or absent. Instead, our analysis in this area must begin with a consideration of the cumulative criteria developed over many years and applying to a wide range of governmental action challenged as violative of the Establishment Clause.

There are always risks in treating criteria discussed by the Court from time to time as "tests" in any limiting sense of that term. Constitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics. The standards should rather be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired. And, as we have noted in Lemon v. Kurtzman and Earley v. DiCenso, ante at 403 U. S. 612, candor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication...

The simplistic argument that every form of financial aid to church-sponsored activity violates the Religion Clauses was rejected long ago in Bradfield v. Roberts, 175 U. S. 291 (1899). There, a federal construction grant to a hospital operated by a religious order was upheld. Here, the Act is challenged on the ground that its primary effect is to aid the religious purposes of church-related colleges and universities. Construction grants surely aid these institutions in the sense that the construction of buildings will assist them to perform their various functions. But bus transportation, textbooks, and tax exemptions all gave aid in the sense that religious bodies would otherwise have been forced to find other sources from which to finance these services. Yet all of these forms of governmental assistance have been upheld. Everson v. Board of Education,330 U. S. 1 (1947); Board of Education v. Allen, 392 U. S. 236 (1968); Walz v. Tax Comm'n., supra. See also Bradfield v. Roberts, supra. The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.

The Act was carefully crafted to ensure the facilities would be used for secular purposes, and none of the defendant institutions violated the sectarian restriction. The religious and educational functions of colleges and universities are separable. Two of the involved five federally financed facilities were libraries, and the others were a language laboratory to assist pronunciation, a science building, and a music, drama and art building.

The Court considered an argument against the financial assistance, on the basis of a “composite profile” of the typical sectarian institution -- of imposing religious restrictions on admissions; requiring attendance at religious activities; compelling obedience to doctrines and dogmas of faith; requiring instruction in theology and doctrine; propagating a particular religion. However, the Court held that an act of Congress cannot be struck down on a hypothetical profile.

The Court then considered the restriction on the sectarian use of the facilities expiring after 20 years, on the basis that the public benefit to the United States at that time would “'equal or exceed in value' the amount of the federal grant.” The Court held that if at the end of the 20 years the facilities are used as a chapel or to promote religious interests, the grant in part would advance religion, which violates the Religion Clauses. However, the 20 year condition was not considered by Congress as essential to the financial aid program as a whole, and only this provision was unconstitutional, while the remainder of the Act remained viable.

The Court next considered whether the Act caused excessive entanglement between government and church, focusing on three particular factors in the case. First – in Lemon the Court found excessive entanglement, where aid to parochial schools was “an integral part of the religious mission of the Catholic Church,” and the “inculcation of religious values was a substantial, if not dominant purpose of the institutions.” However, allegations of a similar purpose with the four institutions receiving aid through the Facilities Act under review were not proven.

There are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools. [Footnote 2] The "affirmative if not dominant policy" of the instruction in pre-college church schools is "to assure future adherents to a particular faith by having control of their total education at an early age." Walz v. Tax Comm'n, supra, at 397 U. S. 671. [Footnote 3] There is substance to the contention that college students are less impressionable and less susceptible to religious indoctrination. [Footnote 4] Common observation would seem to support that view, and Congress may well have entertained it. The skepticism of the college student is not an inconsiderable barrier to any attempt or tendency to subvert the congressional objectives and limitations. Furthermore, by their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal disciplines. Many church-related colleges and universities are characterized by a high degree of academic freedom, [Footnote 5] and seek to evoke free and critical responses from their students.

The record here would not support a conclusion that any of these four institutions departed from this general pattern. All four schools are governed by Catholic religious organizations, and the faculties and student bodies at each are predominantly Catholic. Nevertheless, the evidence shows that non-Catholics were admitted as students and given faculty appointments. Not one of these four institutions requires its students to attend religious services. Although all four schools require their students to take theology courses, the parties stipulated that these courses are taught according to the academic requirements of the subject matter and the teacher's concept of professional standards. The parties also stipulated that the courses covered a range of human religious experiences, and are not limited to courses about the Roman Catholic religion. The schools introduced evidence that they made no attempt to indoctrinate students or to proselytize. Indeed, some of the required theology courses at Albertus Magnus and Sacred Heart are taught by rabbis. Finally, as we have noted, these four schools subscribe to a well established set of principles of academic freedom, and nothing in this record shows that these principles are not, in fact, followed. In short, the evidence shows institutions with admittedly religious functions, but whose predominant higher education mission is to provide their students with a secular education.

Since religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education. This reduces the risk that government aid will, in fact, serve to support religious activities.

Second – the Court found as significant that the aid granted by the Facilities Act was non-idealogical, but secualr and neutral, subsidizing facilities, not teachers, as in Lemon.

Third – the Court found as significant that the grants were a one-time, sing-purpose provision, not one of a continuing financial relationship.

“We think that, cumulatively, these three factors also substantially lessen the potential for divisive religious fragmentation in the religious arena.”

The Court rejected the argument that the Act violated the Free Exercise Clause as the grants due their being financed by taxes, as no coercion was “directed at the practice or exercise of religious beliefs.”

Justices Douglas, Black, and Marshall concurred, dissenting in part.

"The Everson case, which is probably the most celebrated case, provided only by a 5 to 4 decision was it possible for a local community to provide bus rides to nonpublic school children. But all through the majority and minority statements on that particular question, there was a very clear prohibition against aid to the school direct. The Supreme Court made its decision in the Everson case by determining that the aid was to the child, not to the school... The public purpose in secular education is, to be sure, furthered by the program. Yet the sectarian purpose is aided by making the parochial school system viable. The purpose is to increase "student enrollment," and the students obviously aimed at are those of the particular faith now financed by taxpayers' money. Parochial schools are not beamed at agnostics, atheists, or those of a competing sect. The more sophisticated institutions may admit minorities; but the dominant religious character is not changed.

The reversion of the facility to the parochial school [Footnote 2/2] at the end of 20 years is an outright grant, measurable by the present discounted worth of the facility. A gift of taxpayers' funds in that amount would plainly be unconstitutional. The Court properly bars it, even though disguised in the form of a reversionary interest. See Lane v. Wilson, 307 U. S. 268, 307 U. S. 275.

But the invalidation of this one clause cannot cure the constitutional infirmities of the statute as a whole. The Federal Government is giving religious schools a block grant to build certain facilities. The fact that money is given once at the beginning of a program, rather than apportioned annually as in Lemon and DiCenso, is without constitutional significance. The First Amendment bars establishment of a religion. And as I noted today in Lemon and DiCenso, this bar has been consistently interpreted from Everson v. Board of Education, 330 U. S. 1, 330 U. S. 16, through Torcaso v. Watkins, 367 U. S. 488, 367 U. S. 493 as meaning: "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion..."

The facilities financed by taxpayers' funds are not to be used for "sectarian" purposes. Religious teaching and secular teaching are so enmeshed in parochial schools that only the strictest supervision and surveillance would insure compliance with the condition. Parochial schools may require religious exercises, even in the classroom. A parochial school operates on one budget. Money not spent for one purpose becomes available for other purposes. Thus, the fact that there are no religious observances in federally financed facilities is not controlling, because required religious observances will take place in other buildings...

Could a course in the History of Methodism be taught in a federally financed building? Would a religiously slanted version of the Reformation or Quebec politics under Duplessis be permissible? How can the Government know what is taught in the federally financed building without a continuous auditing of classroom instruction? Yet both the Free Exercise Clause and academic freedom are violated when the Government agent must be present to determine whether the course content is satisfactory...

Money saved from one item in the budget is free to be used elsewhere...

Much is made of the need for public aid to church schools in light of their pressing fiscal problems. Dr. Eugene C. Blake of the Presbyterian Church, however, wrote in 1959: [Footnote 2/3]

"When one remembers that churches pay no inheritance tax (churches do not die), that churches may own and operate business and be exempt from the 52 percent corporate income tax, and that real property used for church purposes (which in some states are most generously construed) is tax exempt, it is not unreasonable to prophesy that, with reasonably prudent management, the churches ought to be able to control the whole economy of the nation within the predictable future. That the growing wealth and property of the churches was partially responsible for revolutionary expropriations of church property in England in the sixteenth century, in France in the eighteenth century, in Italy in the nineteenth century, and in Mexico, Russia, Czechoslovakia and Hungary (to name a few examples) in the twentieth century, seems self-evident. A government with mounting tax problems cannot be expected to keep its hands off the wealth of a rich church forever. That such a revolution is always accompanied by anticlericalism and atheism should not be surprising."

Final Note

In Everson v. Board of Education, 1947, the Court held – “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Is the Tilton decision consistent with Everson? Does making students walk to the building next door to one paid for by the federal government for prayer services maintain a separation of church and state? In Tilton, has the Court set a high wall of separation between church and state for College students, and a higher wall of separation of church and state for public school students? Then, is the Court asserting that the primary intent of the First Amendment was to protect young minds from being exposed to God? Is the position set out by the Court more or less superior than the partial dissent by Justices Douglas, Black, and Marshall? Has the basis of the decisions from one case to the next on the Religion Clauses become arbitrary?

Was it the intent of the First Amendment to ensure that federal money could only be spent on education based on secular humanism and academics which assume the non-existence of God? Was the intent of the Amendment to eliminate debate concerning atheism? Was the intent to specify particular buildings where prayer was illegal?

As noted, I will continue in a review of the Constitutionality of federal aid to schools in future posting.

On June 25, 1973, the Court released three decisions relating to state aid to sectarian schools, which will be reviewed in the next three posts, beginning with Committee for Public Education v. Nyquist. In this ruling, the Court noted that most cases under the Establishment Clause involve the relationship between religion and education, dealing with religious activities within the public schools, or public aid to sectarian schools.

In Committee for Public Education, the Court noted precedent drawing a “line most clearly,” or “indisputably marked off,” with “firmly rooted” and “well defined” constitutional standards. However, extensive dissenting opinions interpreted precedent in a different manner. Perhaps, because of the weight of the contrary positions set out, the Court began Committee for Public Education with a review of why precedent has a lesser significance in Religion Clauses cases, and how the wall of Separation of Church and State must be seen as unsanitary and bending.

The style in setting out this ruling decision is difficult and wandering, as if the Court actually desired the greatest seeming complexity for their reasoning. The below review formats the units of thought for clarity of understanding.

I Justice Powell began the opinion of the Court by reviewing the basis of the general principle on the necessity for inconsistency in deciding cases on the Religion Clauses: – that James Madison “admonished that a "prudent jealousy" for religious freedoms required that they never become "entangled . . . in precedents;"– that although the language of the First Amendment reflects the strongly held convictions of James Madison, Thomas Jefferson, and other founding fathers, and despite Madison's admonition for a prudent jealously to protect religious freedom and the “sweep of the absolute prohibitions” of the Clauses, “this Nation's history has not been one of entirely sanitized separation between Church and State, and it has never been thought either possible or desirable to enforce a regime of total separation...;”– that prior cases on the Religion Clauses were based on a thorough and thoughtful scholarship by several of the most respected former justices;– that precedent decisions are not free of “entangling precedents,” but neither has “Jefferson's metaphoric 'wall of separation' between Church and State... become 'as winding as the famous serpentine wall' he designed for the University of Virginia;” (In McCollum v. Board of Education, 1948, Justice Jackson had warned that decisions regarding the Religion Clauses could end up as winding as the serpentine wall, designed by Jefferson at the University of Virginia); – that “the controlling constitutional standards have become firmly rooted and the broad contours of our inquiry are now well defined.”

The Court further qualified this position on the necessity for inconsistency at footnote five.

The existence, at this stage of the Court's history, of guiding principles etched over the years in difficult cases does not, however, make our task today an easy one. For it is evident from the numerous opinions of the Court, and of Justices in concurrence and dissent in the leading cases applying the Establishment Clause, that no "bright line" guidance is afforded. Instead, while there has been general agreement upon the applicable principles and upon the framework of analysis, the Court has recognized its inability to perceive with invariable clarity the "lines of demarcation in this extraordinarily sensitive area of constitutional law." Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612 (1971). And, at least where questions of entanglements are involved, the Court has acknowledged that, as of necessity, the "wall" is not without bends, and may constitute a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Id. at 403 U. S. 614.

In citing James Madison as a basis for selectively ignoring precedent on issues of religious freedom, the Court indicated by footnote that their quoted reference can be found in Everson v. Board of Education, 1947, or Walz v. Tax Comm'n, 1970, wherein the entire text of the Memorial and Remonstrance against Religious Assessments is set out in appendixes to dissenting opinions. In reviewing the Remonstrance, Madison's words on precedent can be found in the third of 15 objections, reprinted below, with the actual language quoted by the Court set in italic.

We remonstrate against the said Bill... 3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity in exclusion of all other Religions may establish with the same ease any particular sect of Christians in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?

IIThe State of New York had “established three financial aid programs for nonpublic elementary and secondary schools.”

1. The first section provided “direct money grants for 'maintenance and repair' of facilities and equipment to ensure the students' “health, welfare and safety.” Qualifying schools served a high concentration of pupils from low income families, with grants of $30 per pupil, $40 if the facilities were 25 years or more old, the amount not to exceed 50% equivalent per pupil cost at public schools.

The New York legislature had found that a fiscal crisis in nonpublic education had caused a diminution of the physical condition of facilities in low income areas, affecting the health, welfare, and safety of students and and the stability of urban areas. "Maintenance and repair" is defined by the statute to include "the provision of heat, light, water, ventilation and sanitary facilities; cleaning, janitorial and custodial services; snow removal; necessary upkeep and renovation of buildings, grounds and equipment; fire and accident protection; and such other items as the commissioner may deem necessary to ensure the health, welfare and safety of enrolled pupils.”

2. The second section established tuition reimbursement for low-income parents of nonpublic school students, up to $50 each at grade school level, and $100 each for high school, not to exceed 50% of actual payment made. The legislature had found that “alternative educational systems should be available a pluralistic society;” that low income families have a diminished right of selection; and a sharp decline of nonpublic school enrollment would seriously jeopardize public school finances and quality.

The legislature specifically stated in both the first and second sections of the aid program, that “such assistance is clearly secular, neutral and non-ideological.”

3. The sections three to five gave tax relief to parents not qualifying for tuition reimbursement, creating a graduated deduction from adjusted gross income.

The legislature indicated the purposes of the tuition reimbursement program were pertinent as well to the tax relief section. The Court summarized further legislative findings on this third part of the aid program as follows.

(i) contributions to religious, charitable and educational institutions are already deductible from gross income; (ii) nonpublic educational institutions are accorded tax exempt status; (iii) such institutions provide education for children attending them and also serve to relieve the public school systems of the burden of providing for their education; and, therefore, (iv) the "legislature . . . finds and determines that similar modifications . . . should also be provided to parents for tuition paid to nonpublic elementary and secondary schools on behalf of their dependents. [Footnote 20]"

Schools which qualified under the aid program were profiled by the Court as follows.

Qualifying institutions, under all three segments of the enactment, could be ones that"(a) impose religious restrictions on admissions; (b) require attendance of pupils at religious activities; (c) require obedience by students to the doctrines and dogmas of a particular faith; (d) require pupils to attend instruction in the theology or doctrine of a particular faith; (e) are an integral part of the religious mission of the church sponsoring it; (f) have as a substantial purpose the inculcation of religious values; (g) impose religious restrictions on faculty appointments; and (h) impose religious restrictions on what or how the faculty may teach." 350 F.Supp. 655, 663.

Of course, the characteristics of individual schools may vary widely from that profile. Some 700,000 to 800,000 students, constituting almost 20% of the State's entire elementary and secondary school population, attend over 2,000 nonpublic schools, approximately 85% of which are church-affiliated. And while "all or practically all" of the 280 schools [Footnote 22] entitled to receive "maintenance and repair" grants "are related to the Roman Catholic Church and teach Catholic religious doctrine to some degree," id. at 661, institutions qualifying under the remainder of the statute include a substantial number of Jewish, Lutheran, Episcopal, Seventh Day Adventist, and other church-affiliated schools. [Footnote 23]

IIILegal action was initiated under the New York aid program on the issue of whether “the substantially religious character of the intended beneficiaries, each of the State's three enactments offended the Establishment Clause.”

IVIn regard to the first part of the Lemon test, the Court noted, that the propriety of a stated secular purpose for a law does not by itself preclude that its primary effect may advance religion or foster excessive entanglements between Church and State.

VIn regard to section one of the aid program on “maintenance and repair” provisions, the Court began by noting, that no attempt was made, nor could be viewed as possible, under the law “to restrict payments to the upkeep of facilities used exclusively for secular purposes.” Without such a restriction, “this section has a primary effect that advances religion in that it subsidizes the religious activities of sectarian elementary and secondary schools.”

Holding that the “maintenance and repair” payments of the New York law advance religion can be distinguished from prior cases on aid to schools and religion.1. In Everson, the Court characterized reimbursement for bus fares to religious schools “as approaching the 'verge' of impermissible state aid.”2. In Board of Education v. Allen, 1968, a New York law only authorized “the provision of secular textbooks” for nonpublic schools (which was a loan to the parents).3. In McGowan v. Maryland, 1961, when the Court sustained “Sunday Closing Laws,” the beneficial effects to religious institutions was “ indirect and incidental.”4. In Walz, again the tax exemption relief for church property only benefited religious institutions indirectly and incidentally.5. In Tilton v. Richardson, 1971, aid to colleges and universities associated with a religious body for the construction of facilities was restricted to those used for a secular purpose.

Although the aid program specifically limits the section one payments to 50% of the amount expended for comparable upkeep work in public schools, which amount might represent their degree of secular service to society, the grant could actually cover all of a school's maintenance and repair expense, and such statistical assessments “will not suffice as a guarantee that state funds will not be used to finance religious education.”

In Earle v. DiCenso, 1971, (decided in conjunction with Lemon v. Kurtzman), the Court similarly held that 15% of a teacher's salary could not be paid by the state, in denying the assumption that teachers could “succeed in segregating 'their religious beliefs from their secular responsibilities'” State aid cannot be based on mere assumption that conflict between the religious and secular can be avoided.

VISection two of the aid program for tuition reimbursement to parents failed the “effect” test, of neither advancing nor inhibiting religion, for the same reasons as the “maintenance and repairs” assistance. The tuition aid must be held as invalid, as there is no guarantee the funds “will be used exclusively for secular, neutral, and non-ideological purposes.” The fact that the aid is disbursed to parents, rather than institutions, does not change the substance of it having a religious function. In Everson, bus fares were reimbursed to parents, but this aid is “analogous to provision of services, such as police and fire protection, sewage disposal, highways, and sidewalks for parochial schools,” which are “so separate and so indisputably marked off from the religious function... Most bus rides have no inherent religious significance....” And in Allen, the state law only authorized the loaning of non-religious textbooks. The effect of the tuition aid under the New York law “is unmistakably to provide desired financial support for nonpublic sectarian institutions.” As Justice Black noted, in dissenting in Allen, the supporting argument for this type law could lead to upholding that state funds could be used to buy property for religious buildings, to pay the salaries of religious teachers, and that religious groups should stop relying on voluntary contributions but wait for the government to pick up all the bills.

The consideration that the reimbursed money can be spent by parents in any desired manner has no relevance.

The argument that the reimbursement pays only a portion of the tuition bill, and an even smaller part of the religious school's total expense, which represents the secular component of the educational function, was already rejected under the “maintenance and repairs” section of the law. “Obviously if accepted, this argument would provide the foundation for massive, direct subsidization of sectarian elementary and secondary schools. Our cases, however, have long since foreclosed the notion that mere statistical assurances will suffice to sail between the Scylla and Charybdis of 'effect' and 'entanglement.'” (Scylla and Charbdis are sea monsters from Greek mythology, located so close to each other, that passing sailors are unable to escape their peril).

In regard to the argument that the tuition aid program promotes the free exercise of religion, the Court responded by noting the tension between the Religion Clauses, the necessity for an attitude of neutrality, and the importance of protecting “the limitations of the Establishment Clause now firmly emplanted.”

Finally, the State argues that its program of tuition grants should survive scrutiny because it is designed to promote the free exercise of religion. The State notes that only "low income parents" are aided by this law, and without state assistance, their right to have their children educated in a religious environment "is diminished or even denied." [Footnote 45] It is true, of course, that this Court has long recognized and maintained the right to choose nonpublic over public education. Pierce v. Society of Sisters, 268 U. S. 510 (1925). It is also true that a state law interfering with a parent's right to have his child educated in a sectarian school would run afoul of the Free Exercise Clause. But this Court repeatedly has recognized that tension inevitably exists between the Free Exercise and the Establishment Clauses, e.g., Everson v. Board of Education, supra; Walz v. Tax Comm'n, supra, and that it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require the State to maintain an attitude of "neutrality," neither "advancing" nor "inhibiting" religion. [Footnote 46] In its attempt to enhance the opportunities of the poor to choose between public and nonpublic education, the State has taken a step which can only be regarded as one "advancing" religion. However great our sympathy, Everson v. Board of Eduction, 330 U.S. at 330 U. S. 18 (Jackson, J., dissenting), for the burdens experienced by those who must pay public school taxes at the same time that they support other schools because of the constraints of "conscience and discipline," ibid., and notwithstanding the "high social importance" of the State's purposes, Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 14 (1972), neither may justify an eroding of the limitations of the Establishment Clause now firmly emplanted.

VIIThat the money involved in the third part of the aid program, sections three to five, consists of tax relief rather than a grant does not change the fact that the state is still being charged for the purpose of religious education.

The argument upholding the tax benefit as valid, because it goes to the parents, rather than the institution, was already rejected with the ruling on the tuition aid part of the program.

The tax exemption is not supported as constitutional under Walz v. Tax Comm'n, 1970. Tax exemptions for church property have a long history of approval in this country, on the basis of having a proper respect for both the Free Exercise and Establishment Clauses, which compels the state to pursue religious neutrality. In the past, the taxation was regarded as hostility toward religion, and the tax exemption protected against such danger. However, special tax benefits do not represent neutrality but aid and advance religious institutions. Although the exemption on church property from taxation confers an indirect and incidental benefit, its purpose was to minimize involvement and entanglement between church and state, not to support or subsidize. The property exemption actually reinforced Separation of Church and State. Further, the benefit was not composed exclusively or predominately of religious institutions but covered all property devoted to religious, educational, or charitable purposes. However, the tax exemption under this aid program went primarily to the parents of sectarian schools. The narrowness of the benefited class is an important factor.

VIIIThe Court then reviewed the New York aid program under the third part of the Lemon Test, which was stated in prior cases as – “the statute must not foster 'an excessive government entanglement with religion.'" The Court held New York's overall program must be considered unconstitutional as it “carries grave potential for entanglement in the broader sense of continuing political strife over aid to religion.'”

As Mr. Justice Black's opinion in Everson v. Board of Education, supra, emphasizes, competition among religious sects for political and religious supremacy has occasioned considerable civil strife, "generated in large part" by competing efforts to gain or maintain the support of government. 330 U.S. at 330 U. S. 9. As Mr. Justice Harlan put it, "[w]hat is at stake as a matter of policy [in Establishment Clause cases] is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point." Walz v. Tax Comm'n, 397 U.S. at 397 U. S. 694 (separate opinion).

The Court recently addressed this issue specifically and fully in Lemon v. Kurtzman. After describing the political activity and bitter differences likely to result from the state programs there involved, the Court said:"The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow." [Footnote 54]*

...the pressure for frequent enlargement of the relief is predictable... But we know from long experience with both Federal and State Governments that aid programs of any kind tend to become entrenched, to escalate in cost, and to generate their own constituencies... In this situation, where the underlying issue is the deeply emotional one of Church-State relationships, the potential for seriously divisive political consequences needs no elaboration...*[Footnote 54]The Court, in Lemon, further emphasized that political division along religious lines is to be contrasted with the political diversity expected in a democratic society:"Ordinarily, political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. Freund, Comment, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1692 (1969)."

IXIn dissenting in part, chief Justice Burger, joined by Justice Rehnquist, and in part by Justice White, noted that precedent on the Religion Clauses laid down one solid, basic principle.

that the Establishment Clause does not forbid governments, state or federal, to enact a program of general welfare under which benefits are distributed to private individuals, even though many of those individuals may elect to use those benefits in ways that "aid" religious instruction or worship.

Upon the basis of this principle the Court upheld the reimbursement of bus fares in Everson and the loaning of textbooks to students in nonpublic schools in Board of Education v. Allen, 1968.

Recognizing that Everson was the case "most nearly in point," the Allen Court interpreted Everson as holding that "the Establishment Clause does not prevent a State from extending the benefits of state laws to all citizens without regard for their religious affiliation. . . ."

Id. at 392 U. S. 241-242. Applying that principle to the statute before it, the Allen Court stated:"Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose. The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil, and ownership remains, at least technically, in the State. Thus, no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools...."

Notwithstanding, the Court held that such an indirect or incidental "benefit" to the religious institutions that sponsored parochial schools was not a conclusive indicium of a "law respecting an establishment of religion." [Footnote 2/4]

One other especially pertinent decision should be noted. In Quick Bear v. Leupp, 210 U. S. 50 (1908), the Court considered the question whether government aid to individuals who choose to use the benefits for sectarian purposes contravenes the Establishment Clause. There, the Federal Government had set aside certain trust and treaty funds for the educational benefit of the members of the Sioux Indian Tribe. When some beneficiaries elected to attend religious schools, and the Government entered into payment contracts with the sectarian institutions, suit was brought to enjoin the disbursement of public money to those schools. Speaking of the constitutionality of such a program, the Court said:"But we cannot concede the proposition that Indians cannot be allowed to use their own money to educate their children in the schools of their own choice because the Government is necessarily undenominational, as it cannot make any law respecting an establishment of religion or prohibiting the free exercise thereof."Id. at 210 U. S. 81-82.

The essence of all these decisions, I suggest, is that government aid to individuals generally stands on an entirely different footing from direct aid to religious institutions...

It is admittedly difficult to articulate the reasons why a State should be permitted to reimburse parents of private school children -- partially at least -- to take into account the State's enormous savings in not having to provide schools for those children, when a State is not allowed to pay the same benefit directly to sectarian schools on a per-pupil basis. In either case, the private individual makes the ultimate decision that may indirectly benefit church-sponsored schools; to that extent, the state involvement with religion is substantially attenuated. The answer, I believe, lies in the experienced judgment of various members of this Court over the years that the balance between the policies of free exercise and establishment of religion tips in favor of the former when the legislation moves away from direct aid to religious institutions and takes on the character of general aid to individual families...

The Court appears to distinguish the Pennsylvania and New York statutes from Everson and Allen on the ground that, here, the state aid is not apportioned between the religious and secular activities of the sectarian schools attended by some recipients, while, in Everson and Allen, the state aid was purely secular in nature. But that distinction has not been followed in the past, see Quick Bear v. Leupp, supra, and is not likely to be considered controlling in the future. There are at present many forms of government assistance to individuals that can be used to serve religious ends, such as social security benefits or "G.I. Bill" payments, which are not subject to nonreligious use restrictions. Yet, I certainly doubt that today's majority would hold those statutes unconstitutional under the Establishment Clause.Since I am unable to discern in the Court's analysis of Everson and Allen any neutral principle to explain the result reached in these cases, I fear that the Court has, in reality, followed the unsupportable approach of measuring the "effect" of a law by the percentage of the recipients who choose to use the money for religious, rather than secular, education... Thus, the Court observes as to the New York tuition grant program: "Indeed, it is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian." Ante at 413 U. S. 783 (emphasis added)...

The "primary effect" branch of our three-pronged test was never, at least to my understanding, intended to vary with the number of churches benefited by a statute under which state aid is distributed to private citizens...

The Court fully recognizes that the legislatures of New York and Pennsylvania have a legitimate interest in "promoting pluralism and diversity among . . . public and nonpublic schools," ante at 413 U. S. 773, in assisting those who reduce the State's expenses in providing public education, and in protecting the already overburdened public school system against a massive influx of private school children. And in light of this Court's recognition of these secular legislative purposes, I fail to see any acceptable resolution to these cases except one favoring constitutionality.

XIn dissenting, Justice Rehnquist, with the concurrence of Chief Justice Burger and Justice White, noted that tax deductions and exemption have a different status under the Religious Clauses.

"The grant of a tax exemption is not sponsorship, since the government does not transfer part of its revenue to churches, but simply abstains from demanding that the church support the state. No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees 'on the public payroll.' There is no genuine nexus between tax exemption and establishment of religion."397 U.S. at 397 U. S. 675 (emphasis added). MR. JUSTICE BRENNAN, in his concurring opinion, amplified the distinction between tax benefits and direct payments in these words:"Tax exemptions and general subsidies, however are qualitatively different. Though both provide economic assistance, they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise, and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. . . . Tax exemptions, accordingly, constitute mere passive state involvement with religion, and not the affirmative involvement characteristic of outright governmental subsidy." Id. at 397 U. S. 690-691 (footnotes omitted).

Here, the effect of the tax benefit is trebly attenuated as compared with the outright exemption considered in Walz. There, the result was a complete forgiveness of taxes, while here the result is merely a reduction in taxes. There, the ultimate benefit was available to an actual house of worship, while here even the ultimate benefit redounds only to a religiously sponsored school. There, the churches themselves received the direct reduction in the tax bill, while here it is only the parents of the children who are sent to religiously sponsored schools who receive the direct benefit...

While it is true that the Court reached its result in Walz in part by examining the unbroken history of property tax exemptions for religious organizations in this country, there is no suggestion in the opinion that only those particular tax exemption schemes that have roots in pre-Revolutionary days are sustainable against an Establishment Clause challenge. As the Court notes in its opinion, historical acceptance alone would not have served to validate the tax exemption upheld in Walz, because "no one acquires a vested or protected right in violation of the Constitution by long use...'"

The reimbursement and tax benefit plans today struck down, no less than the plans in Everson and Allen, are consistent with the principle of neutrality.

XIn dissenting Justice White, joined in part by Chief Justice Burger and Justice Rehnquist, noted that the “primary effect” part of the Lemon Test does not mean “any effect.”

But whatever may be the weight and contours of entanglement as a separate constitutional criterion, it is of remote relevance in the cases before us with respect to the validity of tuition grants or tax credits involving or requiring no relationships whatsoever between the State and any church or any church school. So, also, the Court concedes the State's genuine secular purpose underlying these statutes. It therefore necessarily arrives at the remaining consideration in the threefold test which is apparently accepted from prior cases: whether the law in question has "a primary effect that neither advances nor inhibits religion." School District of Abington Township v. Schempp, supra. While purporting to accept the standard stated in this manner, the Court strikes down the New York maintenance law because its "effect, inevitably, is to subsidize and advance the religious mission of sectarian schools," and for the same reason invalidates the tuition grants. See ante at 413 U. S. 779-780. But the test is one of "primary" effect, not any effect. The Court makes no attempt at that ultimate judgment necessarily entailed by the standard heretofore fashioned in our cases. Indeed, the Court merely invokes the statement in Everson v. Board of Education, 330 U.S. at 330 U. S. 16, that no tax can be levied "to support any religious activities. . . ." But admittedly there was no tax levied here for the purpose of supporting religious activities, and the Court appears to accept those cases, including Tilton, that inevitably involved aid of some sort or in some amount to the religious activities of parochial schools. In those cases, the judgment was that as long as the aid to the school could fairly be characterized as supporting the secular educational functions of the school, whatever support to religion resulted from this direct, Tilton v. Richardson, supra, or indirect, Everson v. Board of Education, supra; Board of Education v. Allen, supra; Walz v. Tax Comm'n, supra; Hunt v. McNair, supra, contribution to the school's overall budget was not violative of the primary effect test or of the Establishment Clause.

There is no doubt here that Pennsylvania and New York have sought in the challenged laws to keep their parochial schools system alive and capable of providing adequate secular education to substantial numbers of students. This purpose satisfies the Court, even though to rescue schools that would otherwise fail will inevitably enable those schools to continue whatever religious functions they perform. By the same token, it seems to me, preserving the secular functions of these schools is the overriding consequence of these laws and the resulting, but incidental, benefit to religion should not invalidate them.

Final Note

In the Rehnquist dissent, once again a justice noted that the most perplexing questions presented to the Court involve the meaning of the Religion Clauses.

Differences of opinion are undoubtedly to be expected when the Court turns to the task of interpreting the meaning of the Religion Clauses of the First Amendment, since our previous cases arising under these Clauses, as the Court notes, "have presented some of the most perplexing questions to come before this Court."

However, why did this perplexity arise only after 1947, at the same time that the concept of Separation of Church and State was stipulated as representing the true meaning of the First Amendment? Does the perplexity indicate a special interpretation of meaning is being forced on the Amendment?

The Court dismissed the argument that the tuition reimbursement under the New York law should be regarded as promoting free exercise of religion, by noting the tension that exists between the Free Exercise and Establishment Clauses, and that religious neutrality can only be maintained by refusing to let the latter clause to become eroded. Thus, has the Court ruled in this instance that the Establishment Clause makes the Free Exercise Clause unconstitutional? Then, according to the concept of Separation of Church and State, does the First Amendment contradict itself? Would the issues decided under the Amendment be just as complex, if an interpretation for its meaning were set out without inherent contradiction?

Does the quote of Madison on not becoming entangled in precedent in regard to religious liberty establish a legal basis within the doctrine of Stare Decisis (defined with the last post on page two of topic thread) for ignoring precedent on First Amendment cases and upholding inconsistency in case decisions as proper and normal? Does the architectural design by Thomas Jefferson of the wall surrounding the University of Virginia truly help with understanding how deviations should occur to the doctrine of Stare Decisis? Does the Court's reference to the mythological sea monsters, Scylla and Charbdis, actually clarify the approach to precedent utilized in the case? Is it possible that the Court is picking and choosing arguments to support their positions, which in reality are based merely on personal preference?

What are the examples in American history of taxation being used as a form of hostility toward religion, and of property tax exemptions being granted in order to foster Separation of Church and State, rather than promoting religion? And if such exemptions were not exclusively or predominately for churches, were they granted to other institutions also to foster Separation of Science/Education/Charity and State? Is there actually a clear and concrete basis for holding that the benefit to religious institutions is indirect and incidental in regard to property tax exemptions or school bus fare reimbursement, but the benefit is direct in regard to partial tax relief or tuition aid for parents of sectarian school students?

In Lemon v. Kurtzman, 1971, the Court held as unconstitutional the State of Pennsylvania reimbursing nonpublic, sectarian schools for expenses arising from teachers' salaries, textbooks, and instructional materials for specified “secular” courses. The Court determined that the supervision required to make certain the aid only benefited non-religious activities would foster “excessive entanglement” between church and state.

Soon after the Kurtzman ruling, the State of Pennsylvania passed a new aid law, the “Parent Reimbursement Act for Nonpublic Education,” to reimburse parents for a portion of tuition expense, funds derived from cigarette tax revenues. The Act was administered by a five member committee appointed by the governor.

The Act emphasized a secular purpose, to reduce the total cost of public education, which would increase more than one billion dollars, if the students of nonpublic schools transferred into the State's school systems.

In order to avoid the “excessive entanglement” problem which formed the basis of the decision in Kurtzman, the Act specifically precluded the committee from “direction, supervision or control over the policy determinations, personnel, curriculum, program of instruction or any other aspect of the administration or operation of any nonpublic school or schools.”

Soon after the Act passed into law, suit was filed in Sloan v. Lemon, to have it declared unconstitutional, by plaintiffs who were residents of Pennsylvania and taxpayers, and by at least one parent of a child in the public schools. Parents of children in nonpublic schools also were permitted to file responses. The decision was released on the same day as Committee for Public Education v. Nyquist.

The Court did not question the legitimacy of the legislature's stated secular purpose for the Act.

In considering whether the Act had the effect of advancing religion, the Court first noted that schools controlled by religious organizations enrolled more than 90% of all nonpublic school students, with the purpose of promoting religious faith. In Kurtzman, 96% of the nonpublic school students attended church related schools, primarily of the Roman Catholic faith.

The Court could find no basis to distinguish the Act from the law ruled on in Nyquitst, even though the New York aid only applied to low income parents. The overall effect of both laws were the same, to support religion-oriented institutions. The benefit to the schools was not “indirect” and “incidental,” such as supplying bus transportation or secular textbooks.

The Court was asked to consider the Act as severable, permitting reimbursement to parents of children not attending church-related schools; and then, to hold that “sectarian schools are entitled to the same aid as a matter of equal protection.” The Court, however, found this argument “thoroughly spurious.” Although the Act contained a severablility clause, the District Court deciding the case had reasoned that since most of the students attended sectarian schools, it could not be assumed the law would have passed if aid was granted only to a relatively few non-sectarian schools. The Supreme Court agreed.

The argument is thoroughly spurious. In the first place, we have been shown no reason to upset the District Court's conclusion that aid to the nonsectarian school could not be severed from aid to the sectarian. The statute nowhere sets up this suggested dichotomy between sectarian and nonsectarian schools, and to approve such a distinction here would be to create a program quite different from the one the legislature actually adopted. See Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U. S. 210, 286 U. S. 234 (1932); cf. Tilton v. Richardson, 403 U. S. 672, 403 U. S. 683-684 (1971) (plurality opinion). Even if the Act were clearly severable, valid aid to nonpublic, nonsectarian schools would provide no lever for aid to their sectarian counterparts. The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution. Having held that tuition reimbursements for the benefit of sectarian schools violate the Establishment Clause, nothing in the Equal Protection Clause will suffice to revive that program.

Although litigants to the case and those who endeavor to formulate systems of state aid to nonpublic education may feel the Court set forth an “insoluble paradox,” as referenced by Justice White in Kurtzman, the fault lies with the Establishment Clause itself, not the doctrines of the Court.

Note Justice White's words from Kurtzman.

The Court thus creates an insoluble paradox for the State and the parochial schools. The State cannot finance secular instruction if it permits religion to be taught in the same classroom; but if it exacts a promise that religion not be so taught -- a promise the school and its teachers are quite willing and, on this record, able, to give -- and enforces it, it is then entangled in the "no entanglement" aspect of the Court's Establishment Clause jurisprudence.

Final Note

The Court noted that if a state passed a statute granting tuition aid to nonpublic schools that were not church-related, it could not become a basis for granting the same aid to sectarian nonpublic schools under the 14th Amendment, which guarantees equal protection of laws, as then the Equal Protection Clause would serve as a bludgeon to force the violation of the Establishment Clause. Thus, has the Court held that the Establishment Clause makes the Equal Protection Clause unconstitutional?

Note the Equal Protection Clause is part of Section 1. of the 14th Amendment, (as quoted below), the same section the Court used in Cantwell v. Connecticut, 1940, to hold that the First Amendment applied to the states. Therefore, is the Court actually holding that the language of the 14th Amendment can only be upheld, in relation to the Religion Clauses, when it precludes support of religion. Then is the proper interpretation of Section 1. actually that no person can be denied equal protection of the law except in matters of religion? If so, how does this exception to equal protection reflect the intent of Congress in passing the 14th Amendment to defend the rights of former slaves? (Note the first two posts of page three in the topic thread for an explanation of how the Establishment Clause was forced on the states through the 14th Amendment).

Does making objection under the Equal Protection Clause, to holding that tuition aid to nonpublic schools which are not church related is constitutional, but aid to sectarian schools is unconstitutional, truly reflect a "spurious" argument?" Is it possible that actually to refuse to regard sectarian schools as equal under the law to secular private schools is what is not genuine?

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The third sectarian aid case decided on June 23, 1973, will be reviewed next.

The third decision of June 25, 1973, for review in this topic thread is Hunt v. McNair. Consideration will not be given to a fourth decision on the same date, Levitt v. Committee for Public Ed., in order to maintain some limit to the extent of content in the thread, and as this case does not actually expand on the Court's overall positions on the Religion Clauses of the First Amendment.

At issue in Hunt v. McNair, 1973, was whether the South Carolina Facilities Authority Act violated the Establishment Clause of the First Amendment, under which revenue bonds benefiting a Baptist controlled college were authorized.

The Act established an Educational Facilities Authority to assist higher education institutions through revenue bonds to finance projects, such as buildings, facilities, and site preparation, but excluding any to be used for sectarian instruction or religious worship. For the college, where only 60% of the students were Baptists, a capital improvement and dining hall project would be conveyed to the Authority, which would lease it back to the school. When the bonds were paid in full, the facilities would be reconveyed to the college. The lease enabled the Authority to conduct inspections to ensure the restriction against sectarian use. The reconveyance also contained a sectarian restriction clause. Under the Act, educational institutions paid a significantly lower interest rate, compared to private financing, due to federal and state tax relief on the bonds.

The Court held that the bonds issued to the Baptist controlled college did not have the primary effect of advancing religion, as the school's operations were not significantly “oriented toward sectarian, rather than secular education.” Without evidence to the contrary, it had to be assumed that the revenue advanced was not used for a religious purpose, according to the conditions of the statute.

The court noted its consistent rejection of the argument that aid to one aspect of a religious institution must be forbidden, as it then permits other resources to be used for a religious end. The Court also noted that the degree of entanglement between church and state arising from inspection of facilities varies to the extent that religion permeates the school, that religious indoctrination reflects the institution's primary purpose.

The College and other private institutions of higher education provide these benefits to the States. [Footnote 5] As of the academic year 1969-1970, there were 1,548 students enrolled in the College, in addition to approximately 600 night students. Of these students, 95% are residents of South Carolina who are thereby receiving a college education without financial support from the State of South Carolina.BTo identify "primary effect," we narrow our focus from the statute as a whole to the only transaction presently before us. Whatever may be its initial appeal, the proposition that the Establishment Clause prohibits any program which in some manner aids an institution with a religious affiliation has consistently been rejected.E.g.,Page 413 U. S. 743Bradfield v. Roberts, 175 U. S. 291 (1899); Walz v. Tax Comm'n, 397 U. S. 664(1970); Tilton v. Richardson, 403 U. S. 672 (1971). Stated another way, the Court has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting. In Tilton v. Richardson, supra, the Court refused to strike down a direct federal grant to four colleges and universities in Connecticut. MR. CHIEF JUSTICE BURGER, for the plurality, concluded that, despite some institutional rhetoric, none of the four colleges was pervasively sectarian, but held open that possibility for future cases:"Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact, possess these characteristics."Id. at 403 U. S. 682.Appellant has introduced no evidence in the present case placing the College in such a category. It is true that the members of the College Board of Trustees are elected by the South Carolina Baptist Convention, that the approval of the Convention is required for certain financial transactions, and that the charter of the College may be amended only by the Convention. But it was likewise true of the institutions involved in Tiltonthat they were "governed by Catholic religious organizations." Id. at 403 U. S. 686. What little there is in the record concerning the College establishes that there are no religious qualifications for faculty membership or studentPage 413 U. S. 744admission, and that only 60 of the College student body is Baptist, a percentage roughly equivalent to the percentage of Baptists in that area of South Carolina. 255 S.C. at 85, 177 S.E.2d at 369. On the record in this case, there is no basis to conclude that the College's operations are oriented significantly towards sectarian, rather than secular, education.Nor can we conclude that the proposed transaction will place the Authority in the position of providing aid to the religious, as opposed to the secular, activities of the College. The scope of the Authority's power to assist institutions of higher education extends only to "projects," and the Act specifically states that a project "shall not include" any buildings or facilities used for religious purposes. In the absence of evidence to the contrary, we must assume that all of the proposed financing and refinancing relates to buildings and facilities within a properly delimited project. It is not at all clear from the record that the portion of the campus to be conveyed by the College to the Authority and leased back is the same as that being financed, but, in any event, it too must be part of the Project and subject to the same prohibition against use for religious purposes. In addition, as we have indicated, every lease agreement must contain a clause forbidding religious use and another allowing inspections to enforce the agreement. [Footnote 6] For these reasons,Page 413 U. S. 745we are satisfied that implementation of the proposal will not have the primary effect of advancing or inhibiting religion. [Footnote 7]...

The Court's opinion in Lemon and the plurality opinion in Tilton are grounded on the proposition that the degree of entanglement arising from inspection of facilities as to use varies in large measure with the extent to which religion permeates the institution. In finding excessive entanglement, the Court in Lemon relied on the "substantial religious character of these church-related" elementary schools. 403 U.S. at 403 U. S. 616. MR. CHIEF JUSTICE BURGER's opinion for the plurality in Tilton placed considerable emphasis on the fact that the federal aid there approved would be spent in a college setting:"Since religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education."

Justices Brennan, Douglas, and Marshall set out a dissenting opinion, detailing the extensive entanglement between church and state in policing compliance with the restrictions of the Act.

Under that arrangement, the College would convey a substantial portion of its campus to the Authority, and the Authority would lease back the property to the College at an agreed rental...The Authority is also empowered, inter alia, to determine the location and character of any project financed under the act; to construct, maintain, manage, operate, lease as lessor or lessee, and regulate the same; to enter into contracts for the management and operation of such project; to establish rules and regulations for the use of the project or any portion thereof; and to fix and revise from time to time rates, rents, fees, and charges for the use of project and for the services furnished or to be furnished by a project or any portion thereof. In other words, the College turns over to the State Authority control of substantial parts of the fiscal operation of the school -- its very life's blood.It is true that the Act expressly provides that State financing will not be provided for"any facility used or to be used for sectarian instruction or as a place of religious worship nor any facility which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination... "But policing by the Authority to insure compliance with these restrictions is established by a provision required to be included in the lease agreement allowing the Authority to conduct on-site inspections of the facilities financed under the act.Thus, it is crystal clear, I think, that this scheme involves the State in a degree of policing of the affairs of the College far exceeding that called for by the statutes struck down in Lemon I, supra. See also Johnson v. Sanders, 319 F.Supp. 421 (Conn.1970),aff'd, 403 U.S. 955 (1971). Indeed, under this scheme, the policing by the State can become so extensive that the State may well end up in complete control of the operation of the College, at least for the life of the bonds. The College's freedom to engage in religious activities and to offer religious instruction is necessarily circumscribed by this pervasive state involvement forced upon the College if it is not to lose its benefits under the Act. For it seems inescapable that the content of courses taught in facilities financed under the agreement must be closely monitored by the State Authority in discharge of its duty to ensure that the facilities are not being used for sectarian instruction. The Authority must also involve itself deeply in the fiscal affairs of the College, even to the point of fixing tuition rates, as part of its duty to assure sufficient revenues to meet bond and interest obligations. And should the College find itself unable to meet these obligations, its continued existence as a viable sectarian institution is almost completely in the hands of the State Authority. Thus, this agreement, with its consequent state surveillance and ongoing administrative relationships, inescapably entails mutually damaging Church-State involvements. Abington School District v. Schempp, 374 U.S. At 374 U. S. 295(BRENNAN, J., concurring); Lemon I, 403 U.S. At 403 U. S. 649 (separate opinion of BRENNAN, J.).

Final Note

Does the Hunt decision reflect consistency of interpretation of the Religion Clauses of the First Amendment? Is the Hunt decision even consistent with Committee for Public Education v. Nyquist, decided on the same day? Has the Court held that the state may assist schools if they are not really religious? Then, is the Court attempting to promote Secular Humanism as an official and national system of beliefs? If a school is controlled by Baptists, how does its outreach even beyond the Baptist community cancel out or reduce the promotion of Baptist doctrine? Has the Court just assumed that contact with the school by non-Baptists cannot lead to conversion to Baptist doctrine? Why should state aid to secular aspects of religious schools, freeing resources for religious ends, be considered insignificant? Why should extensive supervision by the state over a religious school not be considered excessive entanglement, if religious indoctrination is not entirely explicit? If the Hunt decision must be viewed as inconsistent to precedent, then why did the Court feel compelled to uphold a contradictory view point?

In 1971 in Lemon v. Kurtzman, the Court set out a three factor test for determining whether laws violated the Religion Clauses of the First Amendment – 1) The Secular Purpose Factor; 2) The Secular Effect Factor; 3) The Excessive Government Entanglement Factor. According to this three factor Lemon Test, the Court upheld as constitutional statutes by states on the reimbursement of bus fare to parents of students in nonpublic schools, Everson v. Board of Education, 1947, the loaning of secular textbooks to students of nonpublic schools, Board of Education v. Allen, 1968, and even grants for the construction of buildings at colleges and universities, not used for sectarian instruction or religious worship, Tilton v. Richardson, 1971.

Meek v. Pittenger, 1975, the Court reviewed another state aid to nonpublic schools statute, wherein the ruling began with a review of the Lemon Test, noting that it only set guidelines and not precise limits in how decisions on the Religion Clauses should be made. Then, the Court added to the Lemon Test additional factors for ruling on cases, such as what percentage of the schools receiving aid were religious and the amount of money spent. The Court also enhanced emphasis on the possibility of political divisiveness as a result of the aid, which was part of the Government Entanglement Factor in Lemon. Further, the Court applied the possibility of government entanglement by need of supervision to even remotely possible circumstances.

By statute the state of Pennsylvania provided to non-public school students “auxillary services,” (Act 194), and loans of textbooks “acceptable for use in” the public schools, (Act 195).

"Auxiliary services" include counseling, testing, and psychological services, speech and hearing therapy, teaching and related services for exceptional children, for remedial students, and for the educationally disadvantaged, "and such other secular, neutral, non-ideological services as are of benefit to nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth."

Act 194 specifies that the teaching and service are to be provided in the nonpublic schools themselves by personnel drawn from the appropriate "intermediate unit," part of the public school system of the Commonwealth established to provide special services to local school districts. See Pa.Stat.Ann., Tit. 24, §§ 9-951 to 9-971.

Act 195 authorizes the State Secretary of Education, either directly or through the intermediate units, to lend textbooks without charge to children attending nonpublic elementary and secondary schools that meet the Commonwealth's compulsory attendance requirements. [Footnote 3] The books that may be lent are limited to those "which are acceptable for use in any public, elementary, or secondary school of the Commonwealth."

Act 195 also authorizes the Secretary of Education, pursuant to requests from the appropriate nonpublic school officials, to lend directly to the nonpublic schools "instructional materials and equipment, useful to the education" of nonpublic school children. [Footnote 4] "Instructional materials" are defined to include periodicals, photographs, maps, charts; sound recordings, films, "or any other printed and published materials of a similar nature." "Instructional equipment," as defined by the Act, includes projection equipment, recording equipment, and laboratory equipment.

The stated purpose of the Acts was to ensure that all students in Pennsylvania would benefit equally from axillary services, textbooks, and instructional materials provided to public school children.

At issue was whether these Acts were a law respecting an establishment of religion in violation of the First Amendment.

The complaint alleged that each Act "is a law respecting an establishment of religion in violation of the First Amendment" because each Act "authorizes and directs payments to or use of books, materials and equipment in schools which (1) are controlled by churches or religious organizations, (2) have as their purpose the teaching, propagation and promotion of a particular religious faith, (3) conduct their operations, curriculums and programs to fulfill that purpose, (4) impose religious restrictions on admissions, (5) require attendance at instruction in theology and religious doctrine, (6) require attendance at or participation in religious worship, (7) are an integral part of the religious mission of the sponsoring church, (8) have as a substantial or dominant purpose the inculcation of religious values, (9) impose religious restrictions on faculty appointments, and (10) impose religious restrictions on what the faculty may teach."

In reviewing first the Lemon Test, Lemon v. Kurtzman, 1971, the Court noted it did not set precise limits to constitutional analysis, but the Test only provides a basic framework and serves as guidelines for review of specific cases.

These tests constitute a convenient, accurate distillation of this Court's efforts over the past decades to evaluate a wide range of governmental action challenged as violative of the constitutional prohibition against laws "respecting an establishment of religion," and thus provide the proper framework of analysis for the issues presented in the case before us. It is well to emphasize, however, that the tests must not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as guidelines with which to identify instances in which the objectives of the Establishment Clause have been impaired.

The Court ruled that the textbook provision of Act 195 was consistent with Everson v. Board of Education, 1947, and Board of Education v. Allen, 1968. Act 195 provided secular textbooks acceptable for use in Pennsylvania's public schools, and the benefit to religious institutions was indirect and incidental. The Court quoted Allen in noting,

Books are furnished at the request of the pupil, and ownership remains, at least technically, in the State. Thus, no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools.

Act 195 also “authorizes the loan of instructional material and equipment directly” to nonpublic schools. The Act is upheld as having the secular purpose of assuring that the State's school children have ample opportunity to develop their intellectual capacities. However, the direct loan of the instructional material and equipment actually “has the unconstitutional primary effect of advancing religion because of the predominately religious character of the schools” benefited.

Pennsylvania only requires that the schools benefited satisfy the State's compulsory attendance law, by providing subjects prescribed by the standards of the State Board of Education. The State does not inquire into the religious character of the schools, whether attendance at theology classes or religious services were required, or whether the instructional material and equipment might be used to inculcate religious values. More than 75% of the nonpublic schools receiving benefits under the Act are church or religiously affiliated. The aid provided to them under the Act is not indirect or incidental, but massive, just under $12 million. Although some of the material and equipment is self-policing, as its nonsectarian nature cannot be changed, such as maps, charts, and laboratory instruments, it ignores reality to separate the secular function of the aid from the predominantly religious roles of the schools. “Even though earmarked for secular purposes, 'when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in a religious mission,' State aid has the impermissible primary effect of advancing religion. Hunt v. McNair....”

The church-related elementary and secondary schools that are the primary beneficiaries of Act 195's instructional material and equipment loans typify such religion-pervasive institutions. The very purpose of many of those schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. See Lemon v. Kurtzman, 403 U.S. at 403 U. S. 616-617. Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole.

(T)he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.

Act 194 authorizes the Secretary of Education to provide professional staff, as well as supportive materials, equipment and personnel to nonpublic schools, for “remedial and accelerated instruction, guidance counseling and testing, speech and hearing services.” Although this aid is secular and ideologically neutral, providing it has “'the potential for impermissible fostering of religion.'” Surveillance of how the aid is administered would entail “a constitutionally intolerable degree of entanglement between church and state...”

That Act 194 authorizes state funding of teachers only for remedial and exceptional students, and not for normal students participating in the core curriculum, does not distinguish this case from Earley v. DiCenso and Lemon v. Kurtzman, supra. Whether the subject is "remedial reading," "advanced reading," or simply "reading," a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists. The likelihood of inadvertent fostering of religion may be less in a remedial arithmetic class than in a medieval history seminar, but a diminished probability of impermissible conduct is not sufficient: "The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion." 403 U.S. at 403 U. S. 619. And a state-subsidized guidance counselor is surely as likely as a state-subsidized chemistry teacher to fail on occasion to separate religious instruction and the advancement of religious beliefs from his secular educational responsibilities. [Footnote 21]

The fact that the teachers and counselors providing auxiliary services are employees of the public intermediate unit, rather than of the church-related schools in which they work, does not substantially eliminate the need for continuing surveillance. To be sure, auxiliary services personnel, because not employed by the nonpublic schools, are not directly subject to the discipline of a religious authority. Cf. Lemon v. Kurtzman, 403 U.S. at 403 U. S. 618. But they are performing important educational services in schools in which education is an integral part of the dominant sectarian mission and in which an atmosphere dedicated to the advancement of religious belief is constantly maintained. See id. at 403 U. S. 618-619.

The potential for impermissible fostering of religion under these circumstances, although somewhat reduced, is nonetheless present.

Further, aid under Act 194 also creates a serious potential for divisive political strife over the issue of religious aid, against which the Establishment Clause was intended to protect.

Justices Brennan, Douglas, and Marshal, in concurring in part and dissenting in part, asserted that actually the Lemon Test consisted of a four factor – the potential for political divisiveness. Lemon v. Kurtzman, 1971, did note that ordinarily political debate and division are normal and healthy manifestations of our democratic system, but the Court then also declared that –

political division along religious lines was one of the principle evils against which the First Amendment was intended to protect... It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislature and in our elections that they could avert attention from the myriad of issue and problems that confront every level of government... Committee for Public Education & Religious Liberty v. Nyquist 413 U.S. 156 (1973), decided two years later, emphasized the importance to be attached by judges to this fourth factor... Plainly then, as in Nyquist, the political divisiveness factor applies “with particular force to the... statue now before us.”

Chief Justice Burger, in concurring in part and dissenting in part, noted that actually the ruling in Meek was discriminatory against religion.

Certainly, there is no basis in "experience and history" to conclude that a State's attempt to provide -- through the services of its own state-selected professionals -- the remedial assistance necessary for all its children poses the same potential for unnecessary administrative entanglement or divisive political confrontation which concerned the Court in Lemon v. Kurtzman, supra. Indeed, I see at least as much potential for divisive political debate in opposition to the crabbed attitude the Court shows in this case. See, e.g., ante at 421 U. S. 371 n. 21.

If the consequence of the Court's holding operated only to penalize institutions with a religious affiliation, the result would be grievous enough; nothing in the Religion Clauses of the First Amendment permits governmental power to discriminate against or affirmatively stifle religions or religious activity. Everson v. Board of Education, 330 U. S. 1, 330 U. S. 18 (1947). But this holding does more: it penalizes children -- children who have the misfortune to have to cope with the learning process under extraordinarily heavy physical and psychological burdens, for the most part congenital. This penalty strikes them not because of any act of theirs, but because of their parents' choice of religious exercise...

The melancholy consequence of what the Court does today is to force the parent to choose between the "free exercise" of a religious belief by opting for a sectarian education for his child or to forgo the opportunity for his child to learn to cope with -- or overcome -- serious congenital learning handicaps, through remedial assistance financed by his taxes... One can only hope that, at some future date, the Court will come to a more enlightened and tolerant view of the First Amendment's guarantee of free exercise of religion, thus eliminating the denial of equal protection to children in church-sponsored schools, and take a more realistic view that carefully limited aid to children is not a step toward establishing a state religion -- at least while this Court sits.

Justices Rehnquist and White, in concurring in part and dissenting in part, noted that in essence Meek was decided based on the percentage of sectarian schools benefited. However, the Court ruled arbitrarily that textbooks going to a high percentage of sectarian schools is constitutional, while instructional materials and equipment to the same schools is not.

Justices Rehnquist and White further noted –

I find this portion of the Court's opinion deficient as a matter of process and insupportable as a matter of law. The burden of proof ordinarily rests upon the plaintiff, but the Court's conclusion that the dangers presented by a state-subsidized guidance counselor are the same as those presented by a state-subsidized chemistry teacher is apparently no more than an ex cathedrapronouncement on the part of the Court, if one may use that term in a case such as this, since the District Court found the facts to be exactly the opposite -- after consideration of stipulations of fact and an evidentiary hearing:

"The Commonwealth, recognizing the logistical realities, provided for traveling therapists, rather than traveling pupils. There is no evidence whatsoever that the presence of the therapists in the schools will involve them in the religious missions of the schools. . . . The notion that, by setting foot inside a sectarian school, a professional therapist or counselor will succumb to sectarianization of his or her professional work is not supported by any evidence."

The Justices quoted Justice White in Nyquist, as saying,

I am disturbed as much by the overtones of the Court's opinion as by its actual holding. The Court apparently believes that the Establishment Clause of the First Amendment not only mandates religious neutrality on the part of government, but also requires that this Court go further and throw its weight on the side of those who believe that our society as a whole should be a purely secular one. Nothing in the First Amendment or in the cases interpreting it requires such an extreme approach to this difficult question, and "[a]ny interpretation of [the Establishment Clause] and the constitutional values it serves must also take account of the free exercise clause and the values it serves."

Final Note

The Court noted by citing precedent that “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect....” In like manner, the Court has often ruled that the First Amendment must be applied against the states by the federal government, instead of protecting the states from the federal government, as set out by Cantwell v. Connecticut, 1940. However, Cantwell never set out a basis for this decision. And has the Court actually ever sufficiently reviewed a basis in evidence to establish their assertion on a primary purpose of the First Amendment being protection from political division? Did the Court ever clearly establish that religious disagreement which affects political ideas is evil? And why has the Court not explained in any cases how secular political ideas stop division and cannot be considered evil? However, precedent rules – even though very often the basis of the cited cases is ignored entirely as part of the process.

In Meek, the dissenting opinions set out well the complications with the ruling. The dissent noted that Meek expands the Lemon Test and in a way that is arbitrary; – that the Court's decision discriminated against religion; – that the decision is inconsistent with precedent on the provision of secular type aid by states; – that the lack of evidence was ignored on how the nature of the aid considered can have the potential to advance religion or for government entanglement.

Perhaps, one day the Court will resolve the inconsistencies in their decisions, by declaring as unconstitutional state aid to religious schools for bus fares, secular textbooks, grants for secular buildings, or even tax exemptions for religious institutions. Is it possible that Everson v. Board of Education, 1947, which established the concept of the Separation of Church and State in constitutional law, while favoring incidental support for religious schools, actually was a first step to outlawing religion in the United States, in order to implant Secular Humanism as our national belief system. Did the Court actually foresee in 1947 the inconsistencies which would arise in deciding cases in the future, and which eventually, at the right time, would have to be resolved, by severely restricting the essence of freedom of religious expression, and by endorsing Secular Humanism as the official government position on matters of faith?